Telehealth’s Rise and Fall: Navigating the Legal Landscape

Unsurprisingly, participation in telehealth services increased exponentially in response to the COVID-19 pandemic. Some sources report that the percentage of physicians providing telemedicine in any form increased sixfold from 2018 to 2021. Indeed, telemedicine presents a cost-efficient solution for many and provides an opportunity for increased quality of care accessible to those in currently underserved communities, including those in rural areas. As with any technological advancement, there are also potential challenges posed by telehealth, including technical difficulties, access barriers, and the inability to replicate in-person care and treatment virtually.

The rise in telehealth services occurred in many jurisdictions without telehealth specific regulations or guidance. The law, in turn, played catch-up against a backdrop of ever-increasing remote offerings and the legitimate need for the same. While the reported usage of telehealth services has sharply declined in the last two years, it is clear that virtual care in some form is here to stay. Telehealth also presents important questions regarding which jurisdiction’s laws governing telehealth apply and when.

Telemedicine is defined under North Dakota law as the practice of medicine using electronic communication, information technologies, or other means between a licensee, defined to include physicians, resident physicians, or physician assistants licensed to practice in North Dakota, in one location and a patient in another. It includes direct, but remote, patient care, store-and-forward technology, and remote monitoring. North Dakota law explicitly provides that the same standard of care and ethical obligations apply whether practicing traditional in-person medicine or telemedicine. Providers should practice telemedicine only in areas in which they have demonstrated competence, based on education, training, ability and experience, giving consideration to board certifications and specialty group telemedicine standards.

To provide telehealth services, a licensee is first required to establish a bona fide relationship with the patient prior to diagnosis or treatment. This requires, under North Dakota law, an examination or evaluation. While the examination or evaluation may be performed entirely through telemedicine, the examination must be the functional equivalent of an in-person assessment. Importantly, an online questionnaire or audio conversation, without more, do not satisfy this requirement. Alternatively, a licensed provider, practicing within their scope of practice, can conduct an in-person examination or evaluation as an intervening intermediary and report the necessary physical findings to the telehealth provider. Importantly, those engaging in telemedicine are subject to all North Dakota laws regarding the adequacy, retention, and provision of medical records and must have the ability to make appropriate referrals if necessary, including for emergent care. There are also specific restrictions on prescribing controlled substances via telemedicine of which every provider should be
aware. Opioids may only be prescribed through telemedicine if prescribed as an FDA-approved medication assisted treatment for opioid use disorder or to a patient in a hospital
or long-term care facility. Licensees prescribing controlled substances via telemedicine must also comply with all governing state and federal laws regarding the prescription of a controlled substance and are required to participate in North Dakota’s prescription drug monitoring program. Expansion of telehealth services may help address provider shortages, extend provider careers, and afford patients alternative and additional platforms to receive quality care they would otherwise not have easy or cost-effective access
to. However, in addition to evolving state-specific telehealth regulations, providers should also be sure to carefully consider HIPAA, state privacy laws, CMS regulations regarding reimbursement, and any third-party payor contracts for potential restrictions or limitations reflective of the remote platform before engaging in telemedicine.